In Dawnvale Cafe Components Limited v Hylgar Properties Limited [2024] EWHC 1199 (TCC) the Technology and Construction Court closely examined a Tomlin order which settled earlier adjudication enforcement proceedings. The court has offered further guidance as to what constitutes 'the same or substantially the same dispute' for the purposes of a potential second adjudication. This article provides an overview of the judgment, highlighting the key considerations and implications for the industry.


The parties were Dawnvale Cafe Components Limited ("Dawnvale") and Hylgar Properties Limited ("Hylgar"). Dawnvale, a kitchen and bar fit-out company, and Hylgar, a property developer, entered into a contract for the design, supply and installation of the mechanical works at The Beacon, Hoylake, Wirral ("the Works") in February 2020 ("the Contract").

The relationship between Dawnvale and Hylgar broke down by October 2020. The parties did not dispute that the Contract was terminated in or around November 2020. Instead, there was a dispute as to which party repudiated from the Contract.

The Adjudication

Hylgar referred the dispute to adjudication by way of a notice dated 8 June 2021, seeking a determination of Dawnvale's work on a true value basis and a repayment of £180,322.92 plus VAT and interest. At this stage, Hylgar had paid £452,251.08 to Dawnvale. Dawnvale rejected that any sums were due to Hylgar and advanced a counterclaim on a smash and grab basis for the sum of £147,289.25 (due to a lack of a payless notice).

The Adjudicator in his decision dated 19 July 2021 found that:

  1. Dawnvale was the party that had repudiated the Contract;
  2. The true value of the Works at the point of termination was £272,251.08 plus VAT;
  3. Dawnvale's counterclaim did not affect Hylgar's claim;
  4. Dawnvale had been overpaid by Hylgar and should repay the sum of £180,322.92 plus applicable VAT; and
  5. Dawnvale was liable for the Adjudicator's fees.

Dawnvale did not pay the sums awarded by the Adjudicator.

Hylgar issued enforcement proceedings seeking recovery comprising of the Adjudicator's award.

Court Proceedings: Tomlin Order

A Tomlin order dated 24 August 2021 stayed the proceedings on settlement terms which were said to be "in full and final settlement of any and all claims the Claimant may have against the Defendant arising from or in connection with these proceedings".

A New Claim

By way of a letter dated 31 August 2023 Hylgar sought further losses from Dawnvale. Notably, these losses resulted from the same repudiatory breach that was central to the 2021 adjudication. The total sought for this new claim was £641,594.76 and Hylgar's position was that if the further sums were not paid, a second adjudication would be commenced. 

This was rejected by Dawnvale's solicitor on the basis that the Tomlin order settled "any and all claims arising from the dispute between the parties" and it raised Part 8 proceedings seeking, amongst other things, an order prohibiting Hylgar from referring its proposed dispute to adjudication.

The judge considered leading case law authorities on the construction of contracts and observed that both parties "were commercial entities with experience of construction dispute resolution and both had legal advice at the time" of the Tomlin Order. In terms of the words "these proceedings" within the Tomlin Order the judge rejected that they prevented a new claim, a second adjudication or any legal action arising from it.

Dawnvale's fall back position was that the words "any and all claims the Claimant may have against the Defendant arising from or in connection with these proceedings" were broad enough to catch the proposed new claim. Ultimately, the judge agreed that the words require to be construed in their specific context and with a distinction from each other and concluded that "arising out of" imports a causal relationship and a closer, more proximate relationship with the proceedings than "in connection with".


Declarations sought by Dawnvale were declined and the proceedings dismissed. The judge held that the new claim was not caught by paragraph 4 of the Tomlin order as it did not arise from, nor was it connected with, the proceedings.

Referral of the "Same Dispute" to Adjudication

The judge also considered whether the second referral to adjudication would constitute 'the same or substantially the same dispute'. The position from Sudlows Limited v Global Switch Estates 1 Limited [2023] EWCA Civ 813 was adopted, and emphasis was placed on the "need to identify what the first adjudicator actually decided". The judge decided that there was no overlap, and the second adjudication could be referred.

Implications for the Construction Industry

This judgment serves as a reminder that wording used in any settlement agreements, including Tomlin orders in court, is of utmost importance. Careful consideration should be given as to the scope of the settlement and the types of claims that are to be settled. In this case the scope of the settlement was not full and final of all claims, but instead only those claims relating to the enforcement proceedings.


Karolina Milne


Keith Kilburn

Legal Director